It is when I read articles like this that I have "my blood all going up to my head" (that's a Greek saying for people that get angry). So apparently, Apple is trying to patent "transparent windows that do a certain action after fading away". While I don't personally find this "innovation/invention" patentable, it's fine with me: Apple is doing the best it can to secure its business (maybe I would do the same if I had shareholders on my back).

I'm glad to see I wasn't the only one infuriated by that comment! Immediately I thought of several areas where (fairly obscure, to be sure) Linux GUI's are innvoative. But, more the point, the author is legitimatizing Apple's patents on trivial technology. It really shouldn't be to hard to find prior art, but this gets to the heart of OS's problem, how does OS defend against corporate lawsuits? We need some kind of legal fund community specifically for defending against patents, and possibly even keeping a retaliatory patent portfolio (open to all open-source projects of course) at ready.

No, they are not wrong. Having spent real money on R&D and _really_ innovating, it is about securing that investement.
The problem starts when you are granted patents that don't deserve to be granted. That's a fine line, I agree, but there should be more strict rules by the US patent office while they should employ more knowledgable people to go through these questionable patents.

Patents that reward true investment and innovation are good and fair. Those which stifle it are wrong and unfair. Unfortunately most seem to fall into the latter category. The article has hit the nail on the head.

I agree it would be good for companies to take patents of everything under the sun in case they at the same time write a contract saying the they will not use it to prevent others from using the "innovation".

I thought patents were about invention, not innovation. I think the concept has been enlarged from inventions to innovations, which are two very different things. In the software-world, innovation should be encouraged, and it should be accessible to do so (no patents applicable). People who really invent should be granted a patent to reap benefits from investments. It is quite hard to really invent something, so patents should be the exception, not the rule...

There's a difference between having a patent on MP3 and a patent on "Compression of Music". The former I am for, the latter I am against. Patenting transparent windows is something I am agains, but a patent on Apples implementation is fine.

Unfortunately, I see a lot of these 'global' patents popping up. They're often not about specific implementations, but about ideas.

So basically, I am agains patenting ideas, but for patenting the implementation of an idea.

It's getting out of hand isn't it. The good news is that we can fight back. We can think, lets create a public repository of ideas. Lets create prior art by publishing our ideas no matter how trivial. That is the only way to prevent someone from abusing it in the future.

I don't blame Apple for trying to get as many patents as possible. It is inevitable in the current patent rat race. I wish that companies like Microsoft and IBM would understand that the current situation is hurting the entire software industry and that they would ask the US congress to reform the current patent process and lobby in Brussels to stop damaging new patent proposals.

The main problem in the US is the Patent Office, which grants patents seemingly without doing any research and patents which are overbroad.
I'd rather not see software patents in Europe, but there are really innovative ideas where a patent would be applicable. But look at existing patents in different technical fields: they are exact, precise and describe a way of implementing an idea that is new and innovative.

Patents on general ideas and business processes should never exist. Patents should be a new and fairly precise way of implementing an idea. Not the idea itself.

I hope that if we get software patents in Europe, that the European Patent Office is a lot smarter, fairer and strict in giving patents. Otherwise we'll get the same problems as in the US.

Also, like someone else said on LinuxWorld, East Asia is where the action is going to be in this way. They don't care about patents (don't care about copyrights either) and the governments of China, Japan and Korea choose Linux. So I guess we'll see a lot of innovation coming from them.
Remember Japan overtaking the US (and Europe) in the car industry? I guess it's going to happen now in IT as well. Not necessarily Japan, but maybe China or India.

It has always been difficult for a small company or for an individual to cash in on new ideas or innovations. Patents or no patents.
The Frauenhofer Instutute had obviously enough support and money to patent its ideas, but most small players have either to sell it or give it up and be squashed to death by the big ones who controll the market. How many inventors, do you think, has MS forced out of the game?

Patents are good, but if you have no support to penetrate the market they are worth nothing.

Eugenia, good that you mentioned Miguel - but there is also the another point of this contrast between USA/UE and the rest. The thing is that USA government and also big companies try to impose the US way of understanding patents abroad via international treaties or direct intervention, so sometimes it happens that US law seems somehow valid in the other country. We've seen that in Poland between IBM and Polish patent office, fortunately then the office resisted AFAIR. Well, now we are kicking another bucket after joining the UE...

Sure, it would be nice to have a patent office that only grants truly innovative patents. But this will never happen. As long as you have an institution such as a patent office, you will have trivial patents and all the problems that come with them.

Patents do more harm than good. I personally know people who have more or less bankrupted themselves trying to patent a (technical) idea as an individual. It did not do them any good since industry just waited until the patent expired and then implemented it.

The patent system should be abolished completely. Patents are not capable of protecting individuals and small companies against huge multinational companies, and protecting huge multinational companies against individuals is not in the public interest.

small software companies and open source software will thrive on countries that are not plagued by the patent nightmare

How are small software companies doing in Brasil?

I can tell you how they are doing in Russia: not that well.
Two profitable areas of Russian software business, both are not even close to what Miguel expects:

1. Code for foreign (US, European) companies- those with software patents.
2. Provide niche localized software for a local market, like accounting for Russian business, with very strong copy protection to prevent software 'sharing.'

By the way, second option only lately became stable profitable business for Russian companies, after Russian government started to enforce copyright laws, and crack down on software sharerers.

Something tells me that these profitable Russian companies do not consider switching to OSS, where sharing is legit, expected and facilitated.

Something also tells me that profitable Russian software companies would be more than happy to have software patents enforced similarly to USA.
They are happy when masked men with machine guns raid locations of so-called software pirates. No, it is for real: machine guns. That's not America, no jokes. If government wants something to happen, government makes it happen.

Something also tells me that unprofitable Russian software companies can not make profit by stealing money from investors (like some OSS embraced companies in USA), hiding cost of software in cost of hardware (again, USA), or by offering consulting and support for obscene costs (once more, USA).

Simply because education levels in Russia are high and salaries are low- people can support themselves and small businesses for a very low fee.

Also, because stock market is not very much developed and often treated as a ponzi scheme (which it is for many companies).

Finally, because Russia is not used to buy bundles: you can buy hardware one place and get software other place. That's why you can't hide cost of software in cost of hardware.

For countries like Russia, and I would guess, Brasil, the only profitable software business is to sell software. The way to achieve it: to make sure business is protected by laws preventing competition to steal ideas and criminals to pirate software.
May be copyright and patents are not the best way to do that, by no better solution had been presented.

I am constantly disappointed in the debate over patentability of software by the following on the side of the F/OSS community:

1. software has been patentable in one form or another since the 1980's (vicom - EU, diamond - US), although admittedly business methods much later (SSB / PBS). I've seen little _quantifiable evidence_ of how the "30,000 illegal software patents" (to quote the FFII website) have prevented Linux, BSD(family), mysql, OpenOffice, etc from becoming the success they are? If patents were really causing an _actual_ problem: F/OSS would not taking the world by storm as it currently is.

2. the 2000 call for GNU patent examples by richard stallman, lists a mere few patents that caused problems for GNU/etc development: this is not a substantial level to argue that the progress of F/OSS has been hampered. Please provide _actual substantive evidence_ (other than FUD) of how _actual software patents_ have impinged upon the success of open source software?

3. with regard to "future consequences": inevitably there will be some technology blocked from use by patents, but _equally_ the innovation and inventiveness of F/OSS can produce the new technologies _first_ and by the mere fact of disclosing them is creating prior art that blocks anyone else from patenting. Thus, F/OSS can wage a competition against those that use patents in return. F/OSS seems to want complete "free beer" and absolution from any liabilities and responsibilities other than "cutting code".

4. with regard to the fear that patents are going to read upon developments: all patent documents and searching systems at the EPO, USPTO and elsewhere are freely available to all comers at no cost, so F/OSS just has to learn how to use them. F/OSS tends to believe that all it needs to do is adhere to copyright issues (i.e. GPL/BSD licenses) and it's free to create as it pleases - if only the rest of society had this choice in creating other works (e.g. there are legal, liability and other issues bound up against anything else one does: publications can get cause you to be held accountable for defamation, product liability laws cover electronic and other goods, anti competitive activity could just as well apply to a F/OSS consortium as it could to a commercial one, etc).

5. many people make money working in commercial companies producing closed source software - a monthly paycheck to feed the children, pay for their education, etc - and the good patents can actually give a substantial commercial value that helps continue to bring rewards for the risk taken to try and make the invention happen. I say "good patents", because yes - like it is suggested, there are those that abuse the system - but abusers of systems exist everywhere, that's a social problem, not a problem of the system itself (other than the lack of safeguards or the costs/etc that make it easier for the abuser) - software patents shouldn't go away, the system needs to be fixed to reduce the levels of abuse, but fundamentally, there are tangible benefits to the wellbeing of many people and their families that are a direct result of the use of patents.

> The patent system should be abolished completely. Patents are not capable of protecting individuals and small companies against huge multinational companies, and protecting huge multinational companies against individuals is not in the public interest.

Just remember that multinational companies are just people at the end of the day. There are engineers and patent attorneys cooperating in filing and building patent portfolios - and making a living at the end of the day doing so.

How come you can't convince them to give up the system voluntarily, if the overall arguments are so apparent? You want to force removal upon them, and thus force their way of operating in the world to be removed? Isn't it true that while F/OSS is succesful, there are just as many examples of succesful closed shop software productions as well?

I make a living from developing software in Germany, and I have to disagree with m's 5th point.

I am working in creating an application. This application is benefitting our company because it provides a valuable service, with high performance, reliability, and sophistication. Copyright laws forbid our competitors from ripping off the software and employing it for themselves.

All that patents could bring to the table is a horde of lawyers swarming all over to find out who broke which patent, and suing the violator into oblivion unless he has a patent portfolio of his own which he can bargain with. The only ones benefitting are the lawyers and the patent offices.

With things being as they are, I don't have to double-check every single algorithm for whether it's patented or not, and we deliver quality software that beats the competition because of our know-how, our skill, and our head start in developing this stuff. Our competition works on similar software, and the market pressures keep everyone trying hard to improve / catch up. In the end, all products get better every day.

Patents are good only for hindering your competition on the *legal* battlefield, instead of the *technological* one where this kind of competition belongs.

- patents are for your implementation of something. You find a way of doing something, you patent it to protect it since it's what your company/whatever is based off of.

- patents are not for the something you're doing.

Software patents on a particular implementation of a programming idea are okay. Patents on the idea (if you patented 'loading an image in a web browser') are not. So, the okay-er version of that would be (loading an image in a web browser using an algorithm to determine if it was pornographic or not and deciding not to display it)

> Copyright laws forbid our competitors from ripping off the software and employing it for themselves.

Did you know that your competitors are allowed to reverse engineer or to take ideas/concepts from your software - copyright doesn't protect this. Further more, perhaps your software simply doesn't have any substantially new and novel technical features worth protecting.

> The only ones benefitting are the lawyers and the patent offices.

Not when you're protecting the investment and revenue of millions of dollars in funding R&D and other activities, providing offices, paying for health insurance and everything else. Sure lawyers and patent offices make money, but I bet you sell your software via. distributers or even with online payments and other people who all take a cut of the pie as well.

> With things being as they are, I don't have to double-check every single algorithm for whether it's patented or not, and we deliver quality software that beats the competition because of our know-how, our skill, and our head start in developing this stuff

Umm, sorry to tell you this: but computer implemented inventions are already patentable and many are granted, so just because you don't do it doesn't mean you can't get in trouble. People have to do this when producing cars, tractors, radio and high fi equipment, domestic products, and all many of other items: it's standard engineering practice, software isn't some magical exclusion.

> Patents are good only for hindering your competition on the *legal* battlefield, instead of the *technological* one where this kind of competition belongs.

Garbage. There are many battlefields: it's not all technological. If it were, you'd be able to spend nothing on sales and marketing and write software because "if you build it, they will come". This just doesn't happen (other than for some very successful products): you wage a war on multiple fronts. That's how economics has, and always will work. Software makes it no different. Protecting your investment in inventions is one of them.

> No patents on algorithms, data structures, procedures, or ideas.

There are none on discoveries, ideas, mathematical methods and so on; other than where they are implemented to have an industrial application.

For example: there's no patent on public key cryptography, but there is on specific embodiments (RSA, ElGamal, etc) that have technical effects. Fair enough too, these people put a lot of effort into inventing new and efficient approaches.

3. with regard to "future consequences": inevitably there will be some technology blocked from use by patents, but _equally_ the innovation and inventiveness of F/OSS can produce the new technologies _first_ and by the mere fact of disclosing them is creating prior art that blocks anyone else from patenting.

After the patent debate started in Europe last year, I talked to a friend of mine who studies to be a laywer soon.

One of the problems, OSS developers have with the patents situation, is that the patent office is not supposed to protect the public from "trivial patents". At least the law in germany assumes (to some degree) the existence of contrary privat interests: If company A gets a trivial patent, a competing company B is assumed to fight it legally.

Obviously, this can't work for OSS developers. They just share the code they've written. Thus, they have no interest to fight trivial patents on legal grounds, and they also have no money to do it. The public looses.

Thus, even _if_ OSS developers create a new technology first, they usually don't patent it. But a company can, and as a result the OSS developer can't even fight it legally.

An example is the patent of what can interpreted as "Virtual desktops" for Windows, granted to Microsoft. Known on Linux for years but who will be able to fight the grant of the patent?

The thing is what somebody might consider innovative, others might not. Personally I don't think using two wireless signals to transfer incomming and outgoing data over a cordless phone is very innovative, but when the person got the patent back in the 80's, it was a new concept.

So people really have to stop thinking about patents as innovations, patents are there to capture ideas in an offical form, nothing more nothing less.

I personally think it has to do with Jealosy, because since Linux is not under any official company and much of the work gets done is done for free, so they cannot usually pay 2000 dollars for a pattent. If patents were free and there had to be no money paid for registration or research, I garontee that every little operation would be patteneted in Linux.

Get off your high horse and realize that filing for a patent isn't an evil thing, and most patents don't even get enforced. How long did that guy have the patent for pluggable browser componets, and never used it? Most patents only decide to get enforced at the end of their life cycle, if they ever do get enforced.

Just because there is a patent doesn't mean the patent holder is going to go after everyone who uses it. Tech companies have been patenting this stuff for ages.

Lets say you are a small company, or even an OSS development group. You come up with a great new product or idea or GUI or whatever, anything really. Now of course you want your product to spread. What happens is you get bought up by a larger company that can do three things for you. One, they can spread your product, they have the muscle to do it. Two, they can fight off other companies who own patents on parts of your ideas. And three, they can give you a boatload of money for your work, and usually hire you and your team as full time paid developers. Then, most of the time, the patent for the original part you did isn't given to the company that bought you, but to you as an individual, yet under the blanket protection of the company.

That's how big businesses and startups work together.

Apple getting a patent on this stuff probably isn't so that they can sue Linux developers everywhere, it's probably to f*ck with Microsoft. If you notice, Apple doesn't usually make the same mistakes twice. Can you imagine where Microsoft would be if Apple hadn't given them permission (although unknowingly) to use their GUI concepts? Concepts, which by the way, weren't given to Apple as a company, but rather to the engineers and developers who came up with them that were currently working at Apple (think the GUI team that they hired away from Xerox when Xerox didn't want to turn a GUI into an actual product).

by PantherPPC on Sat 15th May 2004 16:37 UTC

Here's a few examples for you.

Say I, as an independent engineer develop a new vector processing unit or something of that nature. Now I go get a patent because it's a wonderful new idea, or way to implementing an existing idea. Then IBM uses it. Without asking. Well, crap. Then what? I can go fight IBM in court, being 100% right the whole time, but buried in legal fees until I can't afford to fight anymore (it costs more to defend a patent than to get one), or I can sell myself and my idea to AMD. AMD sees how ingenius I am and hires me on the spot, gives a huge sum for the idea, and pays to defend it against IBM. So now my idea is being used by AMD and IBM, thus making it widespread and I am now considered a tech legend and always remembered for my innovation. I also have a great job and a ton of money.

Or say I come up with a new audio compression format. I get my patent. In fact I put the patent in the name of my entire OSS development team. Then Sony decides they like it and they use it. We can't go up against Sony, it's suicide. So I decide to get bought up by MPEG-LA. They stick the new format into the upcoming MPEG 5, and sue the pants off Sony, who used the format first, but didn't invent it.

Okay, this time I'm Apple. I patent transparent window effects. I know others have used them before, so I put the patent in the name of a developer I hired who really did think them up, or didn't, it's beside the point. Now Microsoft goes and uses the concept in Longhorn. I have three choices here. One, do nothing and get walked all over. Not going to happen. Two, try and shut down MS and Longhorn, also not going to happen. Or three, tell MS that they can keep using my concept if they license it. Now for every copy of Longhorn shipped, I get X amount of money. But at the same time KDE uses the concept. I can shut them down with ease, but why? I don't get anything for it, and nobody cares that they used my idea. So I would probably leave them alone. Now I have a ton of money from MS and left KDE alone. MS would of course call it unfair, and the Mac heads would call it sweet revenge, and the court case would last until the end of time, but I'd make a lot of money.

So now you say, well of course they would keep KDE from using it, they are a greedy capitalist company. Well they haven't sued KDE yet, have they? Think about it. Back in the 80s, Apple snatched up patents for every little thing that Xerox didn't. Icons, desktops, overlapping windows, click and drag. They got dupped into letting MS use them, and it took forever to end that one. But they aren't going after any OSS developer for using them. Go look around and you'll also notice a patent Apple has for fast user switching, they got it back in the early 90s, but it's still in Linux and Windows. Just owning a patent doesn't equal enforcing it to no end. Not everyone is like SCO.

Do you really think anyone can get bought or supported by a big company just like that ???

And what if that doesn' t happen, or what if you want to retain the ownership of your product and run your own little company?
What happens if you don' have any innovation but you just want to use a xommon file format that has been passed from one firm to another one that does nothing in software development but snatching patents and enforcing them??? And they won' t even sell a licence to you because you are too small?

What happens then is that you are screw, and while they might not come right after you, you are in a bad legal possition with no way to change it, and that is bad for any bussiness.

Now, that situatuion is not made up by me, it is a real life case and the file format is the all too common, everyone' s beloved and granted, JPEG

Nice points. However, you stated what I think is the real problem with trivial patents.

Just owning a patent doesn't equal enforcing it to no end. Not everyone is like SCO.

True. However, the problem is that it could be enforced to no end. Let's say Linux somehow storms the multimedia market (what many people see as the market for Macs) and Apple gets near bankruptcy because of that. Do you think they would still be kind with the Linux community? Now let's say Apple is bought by a bigger company (like MS) and they decide to enforce their patent folio...

First of all, thank you Eugenia for speaking up against this madness. It's sometimes hard for people to understand that in order for technological progress to work in any meaningful way, people have to build upon the work of the past. The famous Newton quote is, "If I have seen this far, it is because I stood on the shoulders of giants."

Many are against software patents because they believe software should progress in much the same way scientists are able to advance their ideas (some put forth the argument, software = algorithms = math = not patentable). Open source represents a kind of hyper-reversion to the scientific community's system of journals and peer evaluation.

But I'm with Eugenia. I think software patents SHOULD exist, but with an imperfect patent office, it becomes hard for the system to work well. It seems to me the system would work a LOT better if the patent office involved third party reviewers who were university professors and members of the technological/scientific community. As it is now, patents being reviewed merely by "patent clerks" makes the system not work too well.

In addition, I feel like intellectual property lawyers like Lawrence Lessig need to start popping up in greater numbers. By that I mean lawyers who are informed enough of both legal and technological issues enough to be able to fight cases and set precedents all the way up to the Supreme Court, if necessary.

As for PantherPPC's arguments, I find it very unsettling that you think the reason the system should be allowed to work is because Apple is merciful. When you slice it down, that's all you're saying. Corporations have no incentive not to be merciful, so they will be, and so open source developers have nothing to fear. But this loses sight of the big picture. If Apple has the RIGHT to stop KDE from using this or that general UI concept, whether they do or not is of little consequence. When we argue legal matters, we argue rights, not whether those rights will be exercised.

With your ideas, I could put forth the argument: Well, in an anarchistic society, though everyone has the RIGHT to kill anyone else, few would actually exercise that right, because there is no real incentive to killing. So why worry about it?

You're right not everyone is like SCO? But some companies ARE. The point of a good law is to allow the benevolent companies like Apple to flourish while also disallowing the evil companies like SCO from trickery.

Here's a piece that I posted to a political discussion group along with Eugenia's article. I would like US politicians to become aware of the value of open-source, GNU licensing, and groups like Stallman's Free Software Foundation. I removed mention of the name of a particular firm for this post.

My little note here turned into an editorial also.

C-Span had an excellent Booknotes presentation this morning by
Ted Nace, author of a book called "Gangs of America." It's about
corporations. The discussion got into the history of corporations
going back to the East Indies (?) Tea Company of Great Britain,
which had an army twice as large as the government. Its attempt
to impose a monopoly on tea in the US colonies led to the Boston
Tea Party. Nace also talked about the fascist/business attempt to
engineer what amounted to a coup against FDR and his New Deal,
a topic covered well on Jim Bryant's www.democrats.com as I
recall.

Anyway, Nace's discussion hit on the role of corporations
in society which is a passing interest of mine. He noted a Supreme
Court ruling, (Henry) Ford vs. Dodge (brothers) about automaking,
which effectively ruled that the only standard to be used in running
a corporation is to make money. In other words, nothing, not
environmental improvement, not better health for employees or
better daycare for their kids, not better schools in the city or state,
not even national security, nothing is allowed to stand in the way of
a firm's maximizing profit for its shareholders.

That money-is-everything notion flies in the face of the Free
Software Foundation and its "copyleft" licensing and against
the open-sourcecode approach that gives users free unfettered
rights to examine and even modify the sourcecode of their
programs, recompile it into revised working programs, and
freely contribute their "intellectual capital" to the development
of the software. This is the approach that's brought GNU
Linux to the point that it scares the bejabbers out of Microsoft,
which like the East Indies Tea Company before it, aspires to
achieve virtual monopoly and make everyone run their programs
instead of anyone else's. God forbid that anyone should actually
give away their creations or work in voluntary free collaboration
with others to make something that might compete with Microsoft's
try to achieve global domination in software.

What if volunteers built homes and gave them away? What if people
at the office used Xerox machines to make copies of articles instead
of buying one additional magazine for each employee they want to
read the articles? What if teachers refused to teach the secrets of
reading, or the secrets of physics and chemistry, unless the students
slipped them a little extra beyond what the school board had agreed
to pay them?

At some point, you have to admit that it gets ridiculous to try to turn
knowledge or computer coding or other voluntary contributions into
property that has to be kept secret or at least privately held and can't
be given away freely even by people who choose to do so.

IBM tried this in hardware design 15-20 years ago. When other makers
produced PC clones, IBM came up with one or two proprietary ways
to hook the parts of a PC together, called the PS/2 bus and maybe
another design, and it went nowhere. Trying to turn something generic
into a proprietary cash cow holds back progress and often puts those
who try it on the losing side of technical history. A certain big firm which I won't mention here made some money from the gif graphics format, which used a data compression method
(one of many) that you can read about in an algorithms textbook, but
couldn't put into your own programs without paying that firm a licensing
fee or royalties. Where is that firm today? I think the patent has expired,
but even if not, there are plenty of freely usable alternatives for
compression and for graphics formats. Who needs gifs?

Eugenia's editorial criticizes TRIVIAL patents, like a vertically mounted
box with a small lever that's spring-actuated to quickly make or break
an electrical connection, are what firms are applying for and what the
patent offices of the world are inclined to grant. A patent for a switchbox
to turn your lights off and on, another one for a horizontally mounted
box, another for one that's got two such switches in the same box,
and so forth. A patent for a hemispherical container with a flat base
for holding water for your dog or cat, a patent for a right-handed and
also a left-handed hammer with a nail-puller. Trivial patents are a threat
to progress and enrich only the lawyers who keep track of this nonsense
and sue those who think of something obvious and trivial that's already
on the books.

The following makes the key point that all our stuff, physical products
as well as software, are based on work that's gone before. There is
rarely a truly original creation like Visicalc, the first spreadsheet. All
the spreadsheets since then are just copies and modifications of
Visicalc. For that matter, every scientist who does something called
wonderful can say that he or she reached the heights because of
standing on the shoulders of giants. This is obvious to all except
patent lawyers, judges and sleazy greedy corporations.

but in an environment where the USPO is awarding patents that are stupid, a company needs to patent everything it can so that it can cover its butt from getting sued by some unknown company that patents something and sues you stopping the shipment of a feature unless exorbitant amounts of money are paid.

Apple has never used any software patents offensively, sure they enforce their copyrights and trademarks, but software patents are used to cover them from any attack as does MS and IBM.

Granting the patent on mp3 was also a case of ignoring prior art. The mp3 conversion relise on a number of mathematical constructs, such a psycho-acoustics, which are genuine innovations, but the underlying compression relies on formuals based on Fourier transforms or Discrete cosines, which were developed by mathemeticians and implemented in Oil and Gas exploration.

I am all for levels of copyright on software or data formats, but patents have no place in the software industry.

Apples patent application applies to transparency on a window that increases as the duration of non use in that window increases. If you don't use the window, it slowly fades away. Not a bad idea, and I congradulate the developer who thought of it.

Is it patentable - I personally say no.

Is it copyrightable - that may be debatable. This is an obvious implementation where single screen desktops with multiple windows displayed are concerned.

Specific implementations of ideas are copyrightable, the idea itself should not be, as that stifles innovation, and makes progress dificult, if not impossible.

(providing this is the same Trollaxor of /. and K5 fame) is a convicted BSD fan. I never knew he's a MacSlash editor, but let me tell you one thing I definitely know about this guy... he'll make a damn good journalist.

His articles almost always provoke in-depth discussion, be it "trolling" as some might label it... but as a whole, discussions are always a good thing, provided something positive comes out of it.

In this case, this particular article attracted Eugenia's attention and manage to provoke her enough to come out with a full-blown rebuttal, with insights from "the other side of the fence". More discussion follows... and to me, more exposure, thus more good things.

Portion of an article I am currently working on regardin the patent issue, this part dealing with the case you mentioned.

Prior to 1981, software was considered by the US Patent and Trademark Office as unpatentable. The practice at the time was to grant patents to processes, machines, articles of manufacture, and compositions of matter. Specifically excluded were scientific truths or the mathematical expressions of them. Since the Patent and Trademark Office viewed computer programs and inventions containing or relating to computer programs as mathematical algorithms, and not processes or machines, they were therefore not patentable. This view was upheld by the U.S. Supreme Court in Gottschalk v. Benson (1968) and Parker v. Flook (1975).

During the 1970's two engineers, James Diehr and Theodore Lutton, invented a press that cured rubber. The practice of curing rubber up to this time had been to utilize a well known time,temperature and cure relationship formula. The limitations on obtaining precise temperature readings made the task somewhat difficult.

Diehr and Lutton included a temperature probe connected to a computer, which then applied the known curing formula on an ongoing basis, enabling a more reliable method for determining when the curing process was finished. All in all, a remarkable feat at the time, and a worthy invention.

On August 6, 1975, they applied for a patent on the process. The patent examiner rejected the application. He determined that those steps in the process that are carried out by a computer under control of a stored program constituted nonstatutory subject matter under the Supreme Court decision in Gottschalk v. Benson, 409 U.S. 63 (1972). The remaining steps - installing rubber in the press and the subsequent closing of the press were conventional and necessary to the process and could not be the basis of patentability. The examiner concluded that respondents' claims defined and sought protection of a computer program for operating a rubber-molding press.

The Patent and Trademark Office Board of Appeals agreed with the examiner, but the Court of Customs and Patent Appeals reversed. The Commissioner of Patents and Trademarks sought certiorari arguing that the decision of the Court of Customs and Patent Appeals was inconsistent with prior decisions of the US Supreme Court.

The case was brought before the Supreme Court, Diamond v. Diehr, 450 U.S. 175 (1981), and on March 3, 1981, the court ordered the Patent and Trademark Office to grant a patent on the invention, even though there was no invention claimed besides the use of a computer program.

Since that time, the Patent and Trademark Office has been flooded with patent applications on software and software related processes. In 1994, the Clinton administration appointed Bruce Lehman, the chief lobbyist for the Software Publishing Industry, as Commissioner of the Patent and Trademark Office. Subsequently, in 1995, The Patent and Trademark Office interpreted the courts as requiring them to grant software patents for an extremely broad variety of circumstances, including those that are essentially algorithms only distantly connected to physical processes, even though the US Congress has never specifically legislated that software is patentable.

With the expansion of the criteria for granting of software patents, the applications submitted have applied more and more to process than implementation. By this, I mean patent applications as broad as using a computer to make a credit transaction, play a video or music stream, or even dial a phone. The applications are deliberately obscure, usually taking up pages of technobabble. This current trend in software patent clearly ignores the intentions of the authors of the US Constitution, and will only benfit patent lawyers and large businesses.

1) Why are patents considered a moral issue? They aren't. They're a legal device to ensure inventors benefit from their inventions, and don't fall victim to ripoff artists. Are they granted in a perfect fashion? No. But that does not mean that patents involve a question of morality.

People who invent something can do whatever they want with it; they have no obligation to share it or give it away.

You can question, from a logical point of view, whether new software algorithms and code should be considered inventions. But that's not a moral issue.

2) Why the focus on U.S. patents and U.S. corporations? The world is full of wealthy corporations and just about every country has a patent office. Are, say. French patents any less "evil" than American patents?

The notion of sharing that underpins open source software is useful, but it takes a leap of imagination to project it on the real world as a moral precept.

What's really ironic about this is many corporations get out of paying taxes or don't pay much and so when one frivolous lawsuit after another goes to court it's yours and my tax dollars being squandered on it time after time.

Alot of people are saying if this could be done right, if we could rely on the corporations to be reasonable...some of them will, but a whole lot won't. Baystar's pressuring of SCO to basically stop making Unixware and concentrate on lawsuits shows just how far it's gotten out of hand. A company who's only purpose is lawsuits? How could it have ever come to that?

If there's a moral here, it's that the more they tighten the screws on software, the more piracy, bootlegs, and even game companies getting cracked for their source code. All of this will get much worse before it gets better. But I have simple solution for some of these people problems...afraid of software getting ripped off, don't make software. Get into another business.

The only way to fight back is to have control, and FOSS is not going in that direction, and proprietary software is definately not going in that direction. FOSS would have to focus on system implementation, empowering the developer, buy FOSS doesn't have any leadership.

first apple attempts to patent the wheel
and now apple attempts to patent translucency

both concepts/ideas have been around for thousands of years

apple should be boycotted until they put their bogus patents into the public domain where they belong

by PantherPPC on Sat 15th May 2004 19:55 UTC

"Do you really think anyone can get bought or supported by a big company just like that ???"

Of course not. You have to have something really useful and marketable. Usually it's something that attracts enough attention to be recognized. But it's been happening that way for decades. Usually it's work someone does at a university or research lab and then goes on to work in the commercial market.

"And what if that doesn' t happen, or what if you want to retain the ownership of your product and run your own little company?"

You mean a startup company? That fits right in.

"What happens if you don' have any innovation but you just want to use a xommon file format that has been passed from one firm to another one that does nothing in software development but snatching patents and enforcing them??? And they won' t even sell a licence to you because you are too small?"

You don't pay to use the format in daily use or the format will never be widely used. The people developing the software that works with the format need to make sure they are not infringing on anyone's previous work. And if it costs too much to use that format, then either the format won't take off, or you simply don't have enough money to be competing.

"What happens then is that you are screw, and while they might not come right after you, you are in a bad legal possition with no way to change it, and that is bad for any bussiness."

Yes you are screwed if you can't pay for what you did. You made the mistake of using someone else's work without giving them their proper due.

"Now, that situatuion is not made up by me, it is a real life case and the file format is the all too common, everyone' s beloved and granted, JPEG"

JPEG is an unfortunate situation, but all those who used it in their software really should've gotten a license. Just because the patent switches hands doesn't mean the the licenses are void.

"Wake up, there is a trend of so called "companies" that make their bussiness out of this. >-("

And they have every right to do so. Developers can't just go out and use whatever previous work they feel like and call it their own.

"With your ideas, I could put forth the argument: Well, in an anarchistic society, though everyone has the RIGHT to kill anyone else, few would actually exercise that right, because there is no real incentive to killing. So why worry about it?"

No, you would certainly worry about it. You would learn to protect yourself. In that society only the strongest would survive and thrive. Being the strongest may mean physical strength, or being smarter than everyone else, or anything.

"You're right not everyone is like SCO? But some companies ARE. The point of a good law is to allow the benevolent companies like Apple to flourish while also disallowing the evil companies like SCO from trickery."

Which is why you don't use other people ideas without them letting you. Just because the idea seems obvious doesn't mean you can steal it. For example, let's say I write a song with a simple chord progression. I record and patent the song. Then someone rips me off, and claims that over time every progression will have been thought of and used, so they really aren't doing anything wrong, in fact they even used their own lyrics. Well I'd be pretty upset, and I'd enforce my patent (actually my record company would, as they have the money and muscle to do so). I didn't patent the chords themselves, only the way they are used. If this rip-off artist wants to use my song, he must pay me for it.

"first apple attempts to patent the wheel
and now apple attempts to patent translucency

both concepts/ideas have been around for thousands of years

apple should be boycotted until they put their bogus patents into the public domain where they belong "

JPEG is an unfortunate situation, but all those who used it in their software really should've gotten a license. Just because the patent switches hands doesn't mean the the licenses are void.

Can you tell me where you can get a licence? According to the ISO site, the baseline implementation is be royalty free and licence free. It would be hard for these companies to get one. Some companies did added proprietary/patented extentions to the standard but they are not a part of the baseline implementation. To what I understand, the current situation is that some company found out that the baseline implementation is using an algorithm that seems to be covered by one of their patents... and they found it out/decided to enforce it nine (9) years after the acquisition of the patent. The company that applied for that patent never really enforced it in six (6) years...

dude, you are really simple minded. patents are not used for only first time inventions, they are also used for INNOVATIONS. using a wheel to interface with a portable music device is an innovative interface design.

second, while I think Software patents are horrible, this is not even a real software patent. they are not patenting an algorithm or some code, they are patenting the interface of a window that is out of focus to, over time, become more and more translucent on its own.

and besides that, with all the little companies running around making super lame patents just to sue big corporations for ungodly amounts of money, big guys like MS and IBM and Apple file these patents to protect themselves from attack, not to attack others.

Wrawrat, it's like you said, the company that applied for the patent didn't enforce it for six years, but that doesn't mean that everyone else should be using it. Enforeced or not, you should still get permission.

"they are trying to patent a subset of stuff that xerox already made."

And they have rights to use Xerox's patents and ideas. In fact, a lot of them are now Apple's patents, as a lot of the patents were given to the developers and not the company, and those developers switched over to Apple.

the CONCEPT of a mouse and windows was Xerox's idea, overlapping windows, transparent windows, multitasking, the desktop metaphor and everything else since was NOT made, thought of, or designed my Xerox.

"... the company that applied for the patent didn't enforce it for six years, but that doesn't mean that everyone else should be using it. Enforeced or not, you should still get permission."

The problem is companies are going to patent every little detail just in the hopes that some cash fat company will violate it in even the smallest way and hope to cash out on it. Don't you think that the amount of lawsuits going around in the tech industry is getting a bit out of hand, might well be stifling innovation?

by PantherPPC on Sat 15th May 2004 21:10 UTC

"The problem is companies are going to patent every little detail just in the hopes that some cash fat company will violate it in even the smallest way and hope to cash out on it. Don't you think that the amount of lawsuits going around in the tech industry is getting a bit out of hand, might well be stifling innovation?"

I think there are far too many lawsuits going around, mostly because of companies patenting things that aren't theirs. But I also see how this is forcing innovation. If you can't use something that someone else owns, you have to come up with some new way to do it. And the new way won't catch on unless it has it's advantages. Linux is a great example of that.

Wrawrat, it's like you said, the company that applied for the patent didn't enforce it for six years, but that doesn't mean that everyone else should be using it. Enforeced or not, you should still get permission.

Fifteen years. 6 + 9 = 15. It's almost like they deliberately waited until the format was widespread. This case is a bit similar to BT when they wanted to enforce a 30-years-old patent that could possibly cover hyperlinks.

Anyway, you can't blame the users for not getting a licence. JPEG is an ISO standard so they expected that it was patent/licence-free. Don't tell me they should have done a patent search. Who has the time to do this for everything they are using/developing? I think Friedman's quote ("you can't write more than 1000 lines of code these days without hitting on a patent -- without your knowledge") is quite accurate. Imagine how costly would be software development if programmers were doing patent searchs at every 1000 lines of code.

I believe that the current patent system need a serious overhaul. Old patents that were never enforced should be invalidated and become generic just like unenforced trademarks. Trivial stuff like "fading windows" shouldn't be allowed either. Apple probably spent more money on the patent itself than on the R&D of that "new" technique... I don't care if they are doing it for competing against Microsoft. It shouldn't be granted. Likewise, many Microsoft patents should be revoked for the same reason. The patent war is getting stupid and everybody but huge multinational corporations are getting hurt.

That's a good summary on the patents issue Eugenia, and you and Miguel de Icaza may well be right on this. The US (and probably Europe) will shoot itself in the foot with patent wars, legal fees, lawyers and companies actively making money out of this. I name no names, but you know who they are.

I'm not actually worried about patents. They are a pain, and it means real innovation gets stifled but ultimately patents systems everywhere will get so bogged down that nothing will get done - nothing economically beneficial anyway. It has all got to come to a head some time, and warning of the dangers of patents in Europe and elsewhere isn't actually going to change that. You could argue it would be better to sit and do nothing .

Patents are used largely as a threat more than anything else. From the early wars in office software Microsoft and Lotus patented screens, functions and concepts rather than code. However, nobody complains about the legal threats to Open Office, KOffice or anything else. What will lead to problems is the trivial patenting of silly concepts and functions, and trademarking of words - some of them part of the English language, and some out in nature. Outside of software, we have seen that with Coco Channel trying to throw their weight around.

Over the course of the next ten years I think we will see the major collapse of the concept of patents because it will lead to such meltdown that nothing will get done. Many politicians are even waking up to this reality, albeit slowly. The patents situation is bad in every country, even without large scale patenting of software and concepts. Software will push it over the edge because software is without limits. It is not a physical product (and it is bad enough patenting those, as we have seen), no matter how Microsoft tries, in the same way that a vacuum cleaner is, and so just about every conceivable method is open to interpretation.

In short, it is going to be painful but ultimately the ridiculous patents situation will benefit us all. I say to Microsoft, Apple and others - go and patent all you like, and buy off the European Union. Then make my day and try and enforce those patents, and say goodbye to your business in the process. Even if they don't enforce them, as I believe Microsoft cleverly won't, the situation will still be intolerable.

by PantherPPC on Sat 15th May 2004 21:36 UTC

"Fifteen years. 6 + 9 = 15. It's almost like they deliberately waited until the format was widespread."

They probably did, which is why I said it's an unfortunate case.

"Anyway, you can't blame the users for not getting a licence. JPEG is an ISO standard so they expected that it was patent/licence-free. Don't tell me they should have done a patent search. Who has the time to do this for everything they are using/developing? I think Friedman's quote ("you can't write more than 1000 lines of code these days without hitting on a patent -- without your knowledge") is quite accurate. Imagine how costly would be software development if programmers were doing patent searchs at every 1000 lines of code."

No, you can't blame the users for using a standard. You can blame ISO for making it a standard when it shouldn't have been, if that's the case.

I am with you in saying an overhaul is needed. But I think older, unenforced patents should be made into free standards so long as the patent holders consents. We can't just take patents from people.

"For example, let's say I write a song with a simple chord progression. I record and patent the song. Then someone rips me off, and claims that over time every progression will have been thought of and used, so they really aren't doing anything wrong, in fact they even used their own lyrics."

As far as I know you can't patent a song. But you can have copyright on a song, lyrics etc.
You are awere of the difference between patents and copyright, right?

It's getting out of hand isn't it. The good news is that we can fight back. We can think, lets create a public repository of ideas. Lets create prior art by publishing our ideas no matter how trivial. That is the only way to prevent someone from abusing it in the future.

Except that won't work. You can't patent an idea. You can only patent an invention. There's a world of difference between an invention and an idea. The former is an implementation of the latter. So, all that you will succeed in doing is feeding people who will patent your ideas.

The whole idea of mouse-driven GUI's never came from Apple or MS, it came from Xerox IIRC. Should everyone pay retroactive royalties to Xerox? No.

Why?

Because since the beginning of time, the computer world has been driven by imitation and by the sharing of findings. Look at the internet. What would it bee like without open standards and collaboration? Not where it is today in terms of usability and functionality, that's for sure.

The point being the following: why should MS (or even Apple) be able to lock down many of these ideas that weren't theirs in the first place? Obviously I'm not specifically talking about the patent mentioned in the above article, that's the direction these software patents are headed in.

Apple took from Xerox, MS from Apple, Apple from BSD, BSD, Linux and others from Unix, Apple from MS and so on and that's why computers are so versatile and useful today.

What patents will do is make the rich richer and the poor poorer in the long run and maintain the status quo.

Ask yourself: would it really be a tragedy if the software industry became more of a service-driven commodity industry? No.

by PantherPPC on Sun 16th May 2004 01:23 UTC

"As far as I know you can't patent a song. But you can have copyright on a song, lyrics etc.
You are awere of the difference between patents and copyright, right?"

Yes, I was just using that as an example.

benn, I see where you are going with that, and I agree. You should also look even further back than Xerox for this stuff. Those guys get way too much credit. A lot of concepts that took shape there were being worked on by people long before hand, and some of them ended up working at Xerox.

>> 1) Why are patents considered a moral issue? They aren't.
>> They're a legal device to ensure inventors benefit from
>> their inventions, and don't fall victim to ripoff artists.

I haven't seen anyone mention this yet, but if you have a patent on something, it also applies to people who discover the algorithm or process on their own, even if they haven't seen or heard of the original. Furthermore, I think we need to make a distinction between benefiting from an invention and having a monopoly on an invention. IMO, getting a monopoly on a process or algorithm simply because you were first in line at the patent office IS a moral issue.

I agree with you Eugenia that patent hell will break loose and will hit the industry pretty bad in a few years from now. However I also find that the author of the comment in Mac Slash has some valid points.

Linux simply clones things and merely skip out the R&D bucks needed to ensure things improve and evolve. It's like it implies a serious threat to R&D just like patent office is doing. To me it's obvious that companies don't want their ideas stolen the way Linux does it and this is the only protection they have.

Wonder what would happen if this patent war would make Linux land to be forced to innovate something.... well I guess that'll be interesting since it hasn't really happened yet...

> Linux is the single most innovative idea in computer technology in the last 10 years. You, my friend, are an idiot.

You are uneducated. Anyone who took Operating Systems 101 and studied microkernels, ameoba, HURD, etc will be able to tell that Linux is a technological step backward: it merely reimplemented ideas that were around in the 1970s. However, the important distinction is that Linux is a sociological step forward: the open source collaborative model may have begun in the 1980's (perl, GNU, etc), but it was Linux that brought it onto the commercial playing field.

Patents are a largely:
- technical issues: they are typically only granted for technical innovations (this is a stronger concept in the EPC than the USPTO).
- social issues: as a reward for disclosing the best mode of your invention to the world (rather than relying upon trade secrets, or simply not making the invention in the first place) you obtain a limited 20 year monopoly.
- moral issues: patents are not, in some countries, allowed for medical diagnosis, ideas, discoveries, etc.

Please also, there are some very complex issues here, it's simply not all black and white. Which is why these debates are best founded upon hard evidence rather than (what occurs a lot today) FUD.

The key word that everyone who says "Oh, well, it's OK because no-one's suing Linux" is "yet". That's the word they've been missing out. As soon as F/OSS becomes a real threat to someone's business, they'll hit it with everything they have. Including ridiculous patents.

That's called developing collaboratively. Besides, you look at the stuff being discussed with regards to the Linux kernel and I hardly think that is cloning anything. You can't just whinge and say that Linux is skipping out of spending R & D money. The R & D departments of Sun and Microsoft have to actually justify their more than substantial investments.

Have you seen any concrete ideas from Sun and Microsoft that you actually use? Most of the stuff you use was conceived many, many years ago - mostly in academia and through the open, free and open source software processes.

It's like it implies a serious threat to R&D just like patent office is doing. To me it's obvious that companies don't want their ideas stolen the way Linux does it and this is the only protection they have.

You look at what is in Linux and look at what is in Solaris and Windows from a kernel perspective and you think that Sun and Microsoft have had their ideas stolen? If they feel threatened then I strongly suggest that Microsoft and Sun get their R & D departments to come up with something worth patenting. Funny.

Wonder what would happen if this patent war would make Linux land to be forced to innovate something.... well I guess that'll be interesting since it hasn't really happened yet...

Hmmm. I wonder what Microsoft and Sun have innovated in terms of kernel development? Hasn't happened yet....

You are uneducated. Anyone who took Operating Systems 101 and studied microkernels, ameoba, HURD, etc will be able to tell that Linux is a technological step backward: it merely reimplemented ideas that were around in the 1970s.

I fail to see how it is a step backward - it is still the best way of doing things. Unfortunately, it is impossible to build something that technologically looks good in a textbook. Things don't work that way in real world. Just ask the people working on the Hurd project.

> I fail to see how it is a step backward - it is still the best way of doing things. Unfortunately, it is impossible to build something that technologically looks good in a textbook. Things don't work that way in real world. Just ask the people working on the Hurd project.

You are reading in your own interpretations: I did not mean that, and in fact I partly agree with those sentiments, but I reward innovation over imitation. However, every time you start something anew (ask an architect) you have a chance to forge a new direction - as many new buildings do. Linux chose to reimplement an existing design. This is not technical innovation. To rebutt this, I invite any observers to detail the specific technical innovations (as distinct from development process innovations) that Linux contributed over any other Unix variants.

Just look at BSD, Dragonfly and the other guys that are "retrofitting" MP into existing architecture, equally the same for NetBSD and FreeBSD that built in flexible protocol stacks (e.g. netgraph) or MIT's click project. Yet, at the time of Linux's birth and early development: all of these problems and issues where known of, and forseen: and a truely technically innovative architect would have built a design from day one that solved these problems.

This is clearly offtopic, so I'll stop there.

But please, this is largely a well informed readership: statements like "Linux is the single most innovative idea in computer technology in the last 10 years." are false, misleading and disingenous to the intelligence of the readers that want greater precision and insight - such statements demand an informed counterclaim, which I offered, not an apologist reaction, as you offered.

I've read numerous other posts which are more descriptive and the above description is at least more accurate than simply "translucent windows" or "transparant windows".

Sure, E had semi-transparant windows. But in a far different way than FD.O and Aqua do. (Every) Eterm makes a snapshot of the background. When they're on top they're still snapshots thus nothing special happens because of that. When you move the window a new snapshot ain't made after it is put down so when you move it around it looks fucked up. It also uses more memory because of this snapshotting. Mind you, AmigaOS, Zeta, BeOS, MorphOS, MacOSX, FD.O, DirectFB do this moving around in a smooth way and those which do have transparancy also do it correctly without the bloat and horrible looks.

I am quite educated on operating systems thank you. The fact is that the OS kernels you mentioned aren't going anywhere as of yet in the mainstream market aside from possibly microwave ovens and televisions. And HURD is a joke. They been working on that for nearly as long as Linux and it has yet to attract the attention of a signifigant number of developers. A flawless implementation of tried and true ideas is better tech than new ideas that are improperly implemented due to a lack of maturity. I never said Linux was the newest technology. I said that it was the most revolutionary IDEA in operating systems in the last ten years. IDEA means the whole concept of Linux in both technological and social aspects.

These guys are in a race not against each other, but I have the impression they are trying to block the field to this small patent portfolio holding companies that are growing in number and appetite.

SUN vs Microsoft has shown where these things are likely to go between major players : nowhere. Courts can't make sense of the claims and counter claims and end up making cases a real drain on resources for anyone involved. And as Eugenia is rightly pointing, this guys have spent decades imitating and emulating each other and have hugely benefited in the process. I think they know that.

The Eolas patent claim is a pointer to the fact that specialist patent holding companies is where the threat is mainly coming from for the major players. Microsoft and the others might be trying to avert these guys having it too easy.

Also, I suspect there might be something fishy between the US patent office and the US legal profession. It wouldn't be the first time a powerful industry try to influence an agency in its favour. Think of how powerful the legal industry has become in the US and how much they stand to benefit from the patent muddle. It might be time to stop looking at the usual suspects.

I agree with Richard. Patents should realy not be about Ideas, but about implementations. I guess at some point in the future, these global patents will begin to hurt the software industry so badly, that the US Patent Office will have to change the way they work.

It's already been said. But you can't be for a "free-market" system and for patents at the same time. "Free-market" is about competition. Patents are about anti-competition. Patent proponents would argue that "patents encourage innivation because they 'protect your investmetn in R&D'", but that's just it, "protect" and "free-market" are incompatible.

Think of "patents" as singularties, black holes, if you will in the space of a free-market system. Patentholders wield disproportionate power in this system. They are able to use thes "patents" as capitol to legally destrogy the competition and accumulate power.

True invention is rare. It is creating something that was not there to begin with. The light bulb, Guttenberg’s press, Tesla's AC systems are all true inventions.

Innovation is improvement upon _existing_ creations, and is common throughout the world. Vacuum tubes were an innovation based upon the light bulb, just as modern high-speed printing presses are based upon Guttenberg’s manual press.

One other important distinction between innovation and invention is that innovation _IS_ based, in part, upon reverse engineering! Until recently, in the US that is, reverse engineering was a legitimate and legal business practice. New innovations based upon prior art can be patented as long as there is clear and unrealized improvement/innovation. Through DMCA legislation the US has rendered reverse engineering at least partially, and in some cases outright illegal. And this legislation has hurt innovation.

In terms of software, the patenting of software is like patenting the murder mystery format, web page layout and movies. The actual specific code within the software program needs to be protected, that cannot be disputed. The person who wrote the code needs to be recognized for the work done, financially (closed software), through peer recognition (open software), or combination therein. This protection is offered via copyright (copylefting is another subject entirely).

Using the murder mystery format as an example… The work of a mystery writer is protected by copyright laws. Anyone can use the murder mystery format, but they cannot simply copy the work of another and claim it as their own, either in part or in whole. If I’m writing a dissertation on a murder mystery of a particular author, I can include sections from the work in question, as long as I have permission from the author/publisher and duly recognize this in my dissertation. If the dissertation is published as a work in its own write, I may even have to pay the author/publish a royalty for the use of the included sections. If I do not pay royalties, I can be sued and royalties forced out of me!

Software should only be protected under copyright laws, not patents. Menu layouts are no different that newspaper, magazine or book layouts. The actual coding behind the menus behavior should be copyrighted. But the idea, or in the case of software the idea, itself should not be patented or copyrighted.

The patenting of a menu (or transparent screens, 3D menus, or other GUI/software ideas and implementations) is equal to patenting the murder mystery format. This limits innovation, which is the basis of our economy, our society, our world. Once you can patent a general idea, you loose free access to that idea in all formats. Period! You are at the mercy of the patent holder.

One final notation: Keep in mind that recent legislation in the US has allowed certain copyright holders an extension on the length of time the copyrighted material is protected. The original law set a limit on how long any given material could be protected. Without that limit we would still be paying royalties for Shakespeare works and Gilbert & Sullivan musicals. But now a legal precedent has been set, in which under certain conditions, copyright can be extended indefinitely. It takes no imagination to see this precedent being extended into the field of patents.

My take on patent: an excellent way to crush a small group and company to benefit a large corporation. Patenting software is by far the stupidiest thing to do since all is about algorithm and mathematics. Reading the EU patenting issue, the way "patent" is described doesn't make sense.

It may be fine if it was about copyright but what happen if different person ended up with the same idea without consulting each other?